defence if successful (acquittal)- effect is to negate liability
May be available to involuntary manslaughter
Can lead to controversial decisions
Respects rights of people to use self autonomy
Must protect vulnerable and not encourage significant harm to self or others
Balancing the freedom of individuals against the constraints of public policy
Element 1: consent can be expressed or implied
The courts have explained that in certain situations consent is implied for example to take account of everyday contingencies of life such as being knocked or even grabbing a person's arm in the course of trying to speak to them or arrest them
Collin v Wilcox - consent is a defence to battery and most of the physical contacts of ordinary life are not actionable
Element 2: Consent must be real
Consent is not valid if there is fraud about identity or the nature of quality.
Consent is not however nullified if there is fraud solely about a persons professional qualifications
Element 2: Consent must be real cases
Tabassum - D measured women's breasts saying making medical database. Women consented believe D mefically qualified or doing medical training- there was consent to the nature of the act but not its quality therefore convicted.
Crucial difference between mere submission and real consent - Olugboja - V raped by D's companion. She had seen D rape another women so allowed him to have sex with him and D said she consented.
Dica 2004 - D infected two women with HIV after unprotected sex. D did not tell them he was HIV positive - not real consent.
Element 3: Consent can only be an defence where it is given by an adult with capacity to give valid consent
People with mental incapacity, children and people who are extremely intoxicated will not be able to give valid consent. Their consent will not allow the defendant a defence.
Burrell v Harmer - tattooed 2 boys of 12 and 13. Consent was not a defence. Boys (v’s ) were not capable of giving valid consent. They did not understand the nature of their act. Convicted.
Element 4: consent can be a defence where D was genuinely mistake about the consent being given
The rules of mistake will aplly but the rules of intoxication and intoxicated mistake about self-defence will also be applied.
Consent is not normally available to situations where ABH is caused
This is for public policy reasons. So it is technically only avaivable for offences under s47, s20 and s18 of the OAPA 1861 if it fall within one of the common law exceptions
This is as it exclused street fights.
AG ref (no 6 of 1980) (1981)- street fight to settle difference - no consent
Exception 1: contact sports
But only if within the rules of the games and usualy within play (on the field). Case law included boxing, rugby and hockey
Public interest - problems with deciding what is within and outside of the rules?
Cases for sport
Billinghurst 1978 - D punched an opposing played (V) in an off the ball incident during a rugby match in Wales. Broke V’s jaw in 2 places Held:- Guilty of S20. Consent is only a defence if the injury was inflicted within the rules of the game.
Barnes 2004 - D made a late tackle on player during amateur game leading to serious injury - conviction quashed as not grave enough to be criminal
Exception 2: horse play can give rise to the defence
You can consent to rough horseplay based on honest belief - Jones (1986) Two boys tossed into air by older boys suffered broken arm and ruptured spleen.
Mistake belied in victims consent - Aitken 1992 - RAF offenciers pour white spirit over drunk and sleeping friend wearing fire-resistant flying suit who suffered major burns
Exception 3 Surgery
All forms of surgery can be assualts and battery. Consent is normally required to all procedures. However sometimes doctors have to act in emergencies to save lives - without consent . Therefore consent is a defence to reasonable surgical intervention.
Its in the public interest, and justification for saving lives, But its difficult to see where the boundaries lie?
Exception 5: tattoing and piecing
There no offense is the person asked them to do it. Branding is like tattooing and prosecution is not in the public interest.
R v Wilson - D branded wife's buttocks with his initials using a hot knife and she needed medical treatment.
Exception 6: Vigorous sexual activity
Confusion within the law to whether it is self autonomy and self determination - but want to strike the right balance right between rights of individual and public protection
Slingsby 1995 - there was no conviction when vigorous sexual activity involving a ring lead to blood poising and death
Emmett 1999 - D and gs had sex which resulted in haemorrhage to girlfriends eye and burns on breasts. CA upheld D's convictions as harm caused more than transient or trivial.
Limitation 1: not available for sado-masochistic sexual activities
It has been held that it is not in the public interest to allow the defence of consent in this area
R v Brown and Others 1993 - D convicted of s20 and s47 as part of ault sadomasochistic group where all consented and none needed medical attention - no consent based on public policy.
Not available for Euthanasia
R (on the application of Pretty) v DPP 2001 - D sought declaration that her husband not be prosecuted if he assisted her suicide - HL refused declaration as no consent to death.
Without consent, contact sports would be illegal, can keep sport cases out of the courts
Decision in brown conflicts with Article 8 of ECHR arguably taking social paternalism too far.
Prosecution tries to disprove the consent (V did not consent/consent was not valid/not in public interest to allow consent in these circs)
Jury decides availability of defence
Successful plea – consent negates MR - acquital
Law Commission – Draft Criminal Law Bill 1993 & 1995 Consultation Paper
No major changes to the law on consent!
Suggested that perhaps that causing injury to others “falling short of seriously disabling” could be consented to (moves away from Brown a little)